Hubacz v. Protzman et al

Filing 37

OPINION AND ORDER granting in part and denying in part 18 and 20 Municipal Defendants' Motions to Dismiss; granting 19 Kelly and Protzman's Motion to Dismiss. Signed by Judge William K. Sessions III on 4/4/2013. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ADAM HUBACZ

:
:
Plaintiff, :
:
v.
:
:
TODD PROTZMAN, WILLIAM SHEPELUK, :
JOBY FECCIA, THOMAS KELLY, the :
VILLAGE of WATERBURY, VERMONT, :
and the WATERBURY POLICE
:
DEPARTMENT
:
:
Defendants. :
:

Case no. 2:12-cv-39

Opinion and Order
This action stems from Plaintiff Adam Hubacz’s employment
and termination as a police officer for the Village of Waterbury
Police Department.

Hubacz’s First Amended Complaint (“FAC” or

the “Complaint”) raises a total of thirteen counts against the
Village of Waterbury, Vermont (the “Village” or “Waterbury”);
the Waterbury Police Department (“WPD”); Vermont State Police
Detective Sergeant Todd Protzman; State’s Attorney for
Washington County, Thomas Kelly; Waterbury Village Manager,
William Shepeluk; and Waterbury Police Chief, Joby Feccia.

The

Village, the WPD, Chief Feccia, and Shepeluk (collectively, the
“Municipal Defendants”) filed a joint motion to dismiss all of
the counts pertaining to them; however, they have retracted that
motion with respect to Counts V, VIII, and XII in their reply

memorandum.

See ECF No. 36 at *4-7.

Defendants Protzman and

Kelly have also filed a joint motion to dismiss the counts
pertaining to them.
Pursuant to the Municipal Defendants’ partial withdrawal of
their motion Counts VIII and X against Waterbury and Count XII
against Feccia remain.

The Court grants the Municipal

Defendants’ motion to dismiss except with respect to Count V
(tortious interference) against Feccia and Shepeluk and Count VI
(defamation) against Shepeluk.

The Court also grants Protzman

and Kelly’s motion to dismiss in full.
BACKGROUND
The following facts are taken from the Complaint.

Officer

Hubacz joined the WPD in February 2009 and became a full-time
officer in May 2009.

FAC ¶ 45.

For the duration of his time at

the WPD, Hubacz reported to Chief Feccia.

In 2009, Hubacz

received a full-tuition scholarship to attend the National
Forensics Academy in Tennessee; however Feccia and Waterbury
Village Manager William Shepeluk refused to grant him the ten
weeks of unpaid leave he needed to attend.

Id. ¶ 51.

After

being denied that opportunity, Hubacz also became uncomfortable
working in the Department because of the behavior of some of its
officers, including Feccia.

Hubacz learned of several instances

in which WPD officers engaged in inappropriate conduct, such as
stealing evidence from a liquor control investigation and
2

maintaining improper workplace relationships.

Id. ¶¶ 54-56, 62-

63.
In August 2010, Hubacz applied to the Montpelier Police
Department (“MPD”) and interviewed with the head of that force,
Chief Tony Facos.

Id. ¶ 67.

During the interview, Hubacz

explained that he had serious concerns about the integrity of
employees at the WPD.

Id. ¶ 71.

Though Facos mentioned that

there was a tacit agreement among Vermont police chiefs not to
hire officers from other departments who had been on the job
less than three years, Facos nonetheless made Hubacz a tentative
offer as an officer at the MPD pending a background check and
physical fitness test.

Id. ¶¶ 72, 75.

Less than two weeks

later, Facos called Hubacz to rescind the offer and, during a
later conversation in person, acknowledged that Feccia had
reminded him of the police chiefs’ agreement not to “steal” new
hires.

FAC ¶ 93.

Hubacz also alleges that Shepeluk called his

counterpart in Montpelier, the City Manager, to stop Hubacz from
securing a position there. Id. ¶¶ 87-89.
In December 2010 or January 2011, Hubacz met with Thomas
Kelly, the State’s Attorney for Washington County, Vermont.
¶ 104.

Id.

Hubacz described his issues with the WPD as well as his

failed attempt to move to the MPD.

Kelly advised Hubacz to

leave the WPD but took no further action.

In January or

February 2011, Hubacz met with Shepeluk twice to discuss his
3

problems with the WPD, but Shepeluk also took no action.
107, 109.

Id. ¶¶

In early 2011, Hubacz set out to organize the

Waterbury Police Patrolmen’s Union, Local 402, which certified
with the New England Police Benevolent Association, Inc.
113.

Id. ¶

The union’s goals were to establish uniformity in the

treatment of officers by their commanders, standards for
physical fitness and officer discipline, and the consistency and
uniformity of raises within the Department.

Id. ¶ 117.

In May 2011, Hubacz learned of possible budget cuts at the
WPD and applied for jobs with the Saint Albans Police Department
(“SAPD”) and the City of South Burlington Police Department
(“SBPD”).

FAC ¶¶ 117, 120.

Applicants to the SAPD must take a

polygraph examination to be considered, and on April 19, 2011,
Hubacz traveled to the Williston barracks of the Vermont State
Police (“VSP”) to receive the exam.

Id. ¶ 128.

VSP Detective

Sergeant Todd Protzman, an authorized polygraph examiner, was
assigned to administer Hubacz’s examination.

Id. ¶ 129.

Protzman began by conducting a pre-test interview to gain some
preliminary information to use as control questions for the
polygraph test.

Protzman explained to Hubacz that he could

refuse to answer any questions but that his refusal to do so
would prevent the examination from proceeding.

Id. ¶ 145.

Protzman further instructed Hubacz that “I don’t know” and “I
don’t remember” were unacceptable responses and advised him that
4

admitting to all illegal activity and erring on the side of
disclosure would help him pass his test.

Id. ¶¶ 153, 155.

Protzman proceeded to ask Hubacz a series of questions
covering a wide range of topics, including Hubacz’s marital
status, past psychological treatment, use of illegal drugs,
sexual misconduct1, mental health, association with people who
have been convicted of crimes or who advocate the overthrow of
any governments, and his financial status.

Id. ¶ 140.

After

three and a half hours of questioning, Protzman stopped for a
break, during which he contacted the SAPD.

FAC ¶ 162.

Almost

an hour later, Protzman returned and informed Hubacz that he had
spoken with SAPD Chief Gary Taylor who had directed him to
discontinue the interview without conducting a polygraph
examination.

Id. ¶ 167.

When Hubacz asked whether he had

failed, Protzman explained, “No, it’s not a ‘fail.’
the test never took place, and it didn’t . . . .”

It’s like
Id. ¶ 169.

After the interview, Protzman prepared a document entitled
“Confidential Pre-Employment Polygraph Examination Report” (the
“Report”) and sent it to Taylor and South Burlington Police
Chief Trevor Whipple.

Id. ¶ 179.

1

Protzman did not share the

According to Hubacz, Protzman’s questions focused mainly on illegal
sexual activities, but Protzman also asked him ”[t]o describe intimate
details of his sexual activities, including the name and age of a
particular woman.” FAC ¶ 140(S).

5

Report with Hubacz.

Id. ¶ 180.

The Report included the

following statements:
The applicant advised that in October of 2010 he stole
several police uniform items when left the North Brookfield
Police Department. He said he kept items including a hat,
a badge and a short-sleeve shirt and he said they were used
items that part-time officers were permitted to use on
duty.
* * * *
The applicant advised that in about February of 2011 he
submitted a fraudulent insurance claim to his insurance
company, Liberty Mutual Insurance Company. He said he had
to have his vehicle towed and the tow operator wrote the
bill for $10.00 more than the actual charge. The applicant
said he knowingly submitted the inflated bill to his
insurance company and he subsequently kept the extra
$10.00.
* * * *
The applicant advised that in the past he occasionally
represented himself to be a police officer when he had no
legal right to do so. He said he did this several times to
avoid having to pay a cover charge at clubs. He said he
also did this to obtain a hotel discount. He said he also
did this in high school when interacting with drug users,
to see their reaction.
* * * *
The applicant advised that in 2009 while attending the
Vermont Police Academy he cheated on a Motor Vehicle test.
He said he failed the test a couple of times and then
cheated during a re-test, by asking another student for
information during the test.

6

Id. ¶ 182.

Both the SAPD and SBPD stopped considering Hubacz’s

application when learning of this information.2

FAC ¶¶ 175, 188.

On information and belief, Hubacz claims that Feccia obtained a
copy of the Report from Protzman as well as a DVD recording of
the interview, forwarded a copy of the Report to Kelly, and
forwarded copies of both to Shepeluk.

Id. ¶¶ 195-96, 199-200.

On Friday, June 10, 2011, Hubacz received notice of a
potential disciplinary action against him and on June 15, 2011
was notified by a union representative that the action was
related to his pre-polygraph interview.

Id. ¶¶ 202-04.

Village held a disciplinary hearing on June 20, 2011.
205.

The
Id. ¶

Even though he had yet to receive a copy of the Report,

Hubacz addressed the statements he made in the pre-polygraph
interview.

Id. ¶ 211.

Hubacz explained that he sometimes

showed his badge to get reduced rates on hotels or to enter
clubs for free.

Id. ¶ 214.

He also explained that he had

notified the chief of the North Brookfield Massachusetts Police
Department about the uniforms he had taken and that the chief
had told him not to worry about it.

FAC ¶ 216.

Hubacz noted

that the $10 overpayment by the insurance company was due to a
misunderstanding between him and a tow truck operator and that
he had returned the money to the insurance company.
2

Id. ¶ 216.

According to the Complaint, SAPD learned of Hubacz’s statements when
Protzman called Taylor immediately after the pre-polygraph interview.
FAC ¶ 162.

7

Finally, Hubacz declared that he had not cheated on an exam at
the Vermont Police Academy and that any statement to the
contrary during the pre-polygraph interview was mistaken and a
result of his faulty recollection.

Id. ¶ 219.

The hearing was continued to the first week of August 2011,
whereupon Shepeluk informed Hubacz that the alleged uniform
theft was not an issue, that they would not be prosecuting him
for the $10 overpayment from the insurance company, and that an
in-depth investigation—including calls to Hubacz’s former
classmates at the Academy—revealed no evidence of the alleged
cheating.

Id. ¶ 245.

However, Shepeluk did inform Hubacz that

he and Feccia wanted to punish Hubacz for damaging the
reputations of other WPD officers and employees by criticizing
them.

Id.

Hubacz accepted the loss of seven days of paid

vacation time as a punishment.

Id. ¶ 250.

That resolution was short lived.

On or about September 5,

2011, Kelly notified Feccia that he had decided not to accept
any more cases from Hubacz for prosecution.

Id. ¶ 258.

A few

days later on September 9, Kelly sent out at least 23 copies of
a redacted version of the pre-polygraph Report to members of the
Vermont criminal defense bar and to pro se criminal defendants.
FAC ¶ 259.

Kelly also sent copies of the redacted and

unredacted Report to Cindy Maguire, Esq. at the Vermont Attorney
General’s Office and to Feccia.

Id. ¶ 262-63.
8

In each of the

letters, Kelly described the document as a “report of a preemployment polygraph.”

Id. ¶¶ 261, 267.

Kelly did not inform

Hubacz directly of any of these actions until Hubacz called him
on September 29, 2011.

On Saturday, October 1, 2011, Shepeluk

and Feccia presented Hubacz with a proposed severance agreement,
id. ¶ 297, and Feccia also requested that Hubacz turn in his
gun, which he did.

Id. ¶ 302.

last in uniform for the WPD.

That day proved to be Hubacz’s
Id. ¶ 303.

Hubacz rejected the severance agreement.

Later in October,
FAC ¶ 312.

On January 9, 2012, Shepeluk sent Hubacz a two-page letter
notifying him that he was being placed on paid administrative
leave, that the Village would be considering taking action
against him on January 11, 2012, and that Shepeluk and Feccia
were recommending that he be terminated.

Id. ¶¶ 319-22.

The

hearing was rescheduled for January 24, 2012 by consent of the
parties.

At the beginning of the hearing, the Attorneys for

Hubacz and the Village stipulated “that the sole basis for the
Village’s request for termination would be that Washington
County State’s Attorney Thomas Kelly had decided that his office
would no longer prosecute a case involving Officer Hubacz.”

In

re Adam Hubacz, at *1 (Village of Waterbury, Jan. 27, 2012), ECF
No. 27-18.

At the hearing, Shepeluk and Feccia testified that

Hubacz could not fully perform his duties if Kelly would not
prosecute Hubacz’s cases but acknowledged that Hubacz had done a
9

fine job on the WPD.

FAC ¶ 346-47.

At the conclusion of the

hearing, Hubacz’s counsel filed an eight-page Motion to Dismiss
the notice of charges on the grounds that it: (1) failed to
allege Hubacz had become negligent or derelict in his official
duty, or that he was guilty of conduct unbecoming an officer;
(2) was not based on Shepeluk’s “own knowledge”; (3) was not
based on a “written petition”; and (4) was facially defective
because even if it was considered a “written petition,” it
failed to allege that he was negligent or derelict in his duty
or was guilty of conduct unbecoming an officer.

Id. ¶ 349.

Hubacz also argued that as a State’s Attorney, Kelly did not
have the authority to fashion parameters to put a police officer
out of a job.

Id. ¶ 351.

After a brief executive session, the

Village trustees announced that they would take the matter under
advisement and render a decision at a future date.

Id. ¶ 357.

A day after the hearing, Feccia released the redacted Report to
news outlets.

Id. ¶ 358-360.

On January 27, 2012, the Village issued a 13-page decision
finding that Hubacz had become negligent and derelict in his
duties and terminating his employment under Vt. Stat. Ann. tit.
27, § 1932.

FAC ¶ 373.

its decision.

The Village offered three grounds for

First, the Village explained that Kelly’s

decision not to prosecute any of Hubacz’s cases meant that
Hubacz would be unable to perform his duties as a village police
10

officer, which include “prosecuting and testifying in criminal
cases.”

In re Adam Hubacz, at *8.

Second, the Village reasoned

that Hubacz’s inability to participate in his police work would
destroy public respect for the department and that he was
therefore also guilty of conduct unbecoming a police officer.
Id. at *9.

Finally, the Village noted that “[u]nder Vermont

law, Section 1932 is the only mechanism for a town or village to
dismiss a police officer who cannot function but will not
resign.”

Id.

For that reason, the Village suggested that as a

practical matter, the intent behind Section 1932 could not have
been to require a higher standard for dismissal, such as proof
of willful misconduct.
Hubacz filed his first complaint in this action on February
27, 2012.

Hubacz now lives in Massachusetts.

Id. ¶ 431.

DISCUSSION
On a motion to dismiss, the Court must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor.

Famous Horse Inc. v. 5th

Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).

However, the

Court is not required to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

“To survive a

motion to dismiss, a complaint must contain sufficient factual
11

matter ... to ‘state a claim to relief that is plausible on its
face.’”

Id. (quoting Twombly, 550 U.S. at 570).

A claim is

facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 556).

Id. (citing

This requires a plaintiff to show

“more than a sheer possibility that a defendant has acted
unlawfully.”
I.

Id.

The Claims Against the WPD Are Dismissed
The Municipal Defendants first argue that the WPD does not

have the capacity to be sued and therefore should be dismissed
from counts in which it is named (V, VII, IX, X, and XIII).
Rule 17(b)(3) of the Federal Rules of Civil Procedure requires
district courts to consult state law where they are located to
determine a defendant’s capacity to be sued.

In the absence of

any Vermont statutes or case law on the matter, this Court has
“consistently held that police departments in Vermont do not
have the capacity to be sued.”

O'Brien v. Barrows, No. 10-cv-

173, 2010 WL 5300812 at *2 (D. Vt. Dec. 22, 2010) (citing Gorton
v. Burlington Police Dep't, 23 F. Supp. 2d 454, 456 (D. Vt.
1998); see also Hee v. Everlof, 812 F. Supp. 1350, 1351 (D. Vt.
1993).

Hubacz argues that Franklin County Sheriff’s Office v.

St. Albans City Police Dept., 2012 VT 62, ¶ 7, 58 A.3d 207, 211,
compels a different result, but the Vermont Supreme Court did
12

not squarely address the issue in that case.

Instead, the

Vermont Supreme Court merely affirmed without comment the lower
court’s finding that a municipal department could sue or be sued
when it enters the marketplace as a seller.

Id.

Accordingly,

this Court sees no reason to reconsider its ruling in O’Brien,
and all claims against the WPD are therefore dismissed.
II.

The Claims Against Kelly Are Dismissed
In Counts IV and XII, Hubacz claims that Defendant Kelly

violated his constitutional rights to privacy, freedom of
speech, freedom of association, and due process in violation of
42 U.S.C. § 1983 by deciding not to prosecute cases Hubacz
prepared, communicating that decision to Feccia, sending the
Report to members of the defense bar in cases where Hubacz might
be a witness, notifying Protzman and Assistant Attorney General
Cindy Maguire of those disclosures, and stating that he would
inform any of Hubacz’s prospective law enforcement employers
about the Report.

Kelly asserts that he is entitled to absolute

prosecutorial immunity or qualified immunity for all of these
actions and also that with respect to Count XII, Hubacz has
failed to state a valid claim for a false and stigmatizing
statement.
Kelly is protected by absolute prosecutorial immunity for
most of the conduct Hubacz identifies.

Absolute immunity

attaches to actions associated with the judicial phase of the
13

criminal process, including the decision of whether or not to
initiate criminal prosecution.

Schloss v. Bouse, 876 F.2d 287,

289 (2d Cir. 1989); see also Imbler v. Pachtman, 424 U.S. 409,
427 (1976).

This includes any conduct that could “fairly be

characterized as closely associated with the conduct of
litigation or potential litigation.”
798 F.2d 565, 572 (2d Cir. 1986).

Barrett v. United States,

Although the Second Circuit

has not addressed the issue, both the First and Ninth Circuits
have extended absolute immunity to a prosecutor’s categorical
decision not to pursue all matters involving a particular police
officer.

See Roe v. City & County of San Francisco, 109 F.3d

578, 584 (9th Cir. 1997); Harrington v. Almy, 977 F.2d 37, 42
(1st Cir. 1992).
for state claims.
A.3d 584, 592.

The Vermont Supreme Court has done the same
See O'Connor v. Donovan, 2012 VT 27, ¶ 23, 48

Because the decision not to prosecute cases,

even when done on a wholesale basis, falls within the core
discretion absolute prosecutorial immunity is meant to protect,
it applies to Kelly’s decision in this case.
Kelly’s disclosure of the Report to defense counsel in
pending cases involving Hubacz is also closely related to the
conduct of litigation, as was his decision to notify Protzman
and Assistant Attorney General McGuire.

Although the existence

of a legal or ethical obligation is not a condition precedent
for absolute immunity, it is quite likely that Kelly’s
14

disclosures to defense counsel were required under Brady v.
Maryland, 373 U.S. 83, 87 (1963) and related ethics
requirements.

Even if Kelly was not somehow obligated to make

the disclosures, his decision to share the redacted Report was
directly related to pending litigation, and Kelly’s notification
of McGuire, his superior, and Protzman, the author of the
report, only served to facilitate the State’s response to
potential questions about the Report.

Because Kelly’s

disclosures were intimately connected to the conduct of
litigation, absolute prosecutorial immunity extends to those
actions as well.
Kelly is also entitled to qualified immunity to the extent
some of his actions are not protected by absolute immunity.
Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (“[A]
government attorney is entitled only to qualified immunity when
functioning in an administrative or investigative capacity.”).
The Supreme Court has mandated a two-step inquiry for resolving
government officials’ qualified immunity claims:
First, a court must decide whether the facts that a
plaintiff has alleged . . . make out a violation of a
constitutional right. Second, if the plaintiff has
satisfied this first step, the court must decide whether
the right at issue was “clearly established” at the time of
defendant's alleged misconduct. Qualified immunity is
applicable unless the official's conduct violated a clearly
established constitutional right.

15

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal
citations omitted).

The fundamental question is “whether pre-

existing law from this and other circuits makes it ‘apparent,’
or provides officers with ‘fair warning,’ that the specific
conduct in question is unlawful.”

Towsley v. Frank, 5:09-CV-23,

2010 WL 5394837 at *11 (D. Vt. Dec. 28, 2010) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)); see also Scott v.
Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (explaining that
courts may rely on precedent from other circuit courts of
appeals in deciding that a right is clearly established and
denying qualified immunity).
Here, Hubacz has not met even the initial burden of
pleading facts giving rise to a “stigma-plus” due process claim
against Kelly, much less one that is premised on clearly
established law.

“To establish a ‘stigma plus’ claim, a

plaintiff must show (1) ‘the utterance of a statement
sufficiently derogatory to injure his or her reputation, that is
capable of being proved false, and that he or she claims is
false,’ and (2) ‘a material state-imposed burden or stateimposed alteration of the plaintiff's status or rights.’”

Vega

v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Sadallah v.
City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)).

Hubacz does not

identify any statement Kelly made that damaged Hubacz’s
reputation and is capable of being proven false.
16

While it is

true that the Report may have damaged Hubacz’s reputation,
Hubacz does not dispute its accuracy.

Hubacz instead points to

the fact that Kelly mistakenly referred to the Report as a “preemployment polygraph report” rather than a report of a prepolygraph interview, but to the extent that that
characterization qualifies as a “statement,” it was not
stigmatizing.

See id. (noting that a false statement must be

“sufficiently derogatory to injure [a plaintiff’s] reputation”).
For these reasons, all of the claims against Kelly are
dismissed.
III. The Claims Against Protzman Are Dismissed
A.

Count I Fails to State a Claim Against Protzman for
the Deprivation of Any Clearly Established
Constitutional Rights

In Count I, Hubacz alleges that Protzman deprived him of
his constitutional rights to informational privacy, freedom of
speech, freedom of association, and due process in violation of
42 U.S.C. § 1983.

Protzman argues that Hubacz has failed to

state a valid claim for relief under any of these theories and
that qualified immunity also shields him from suit.
Protzman, like Kelly, is entitled to qualified immunity for
his official actions.

As explained above, Hubacz therefore has

the burden of pleading facts showing a violation of a
constitutional right and demonstrating that the right was
clearly established.

Pearson v. Callahan, 555 U.S. 223, 232
17

(2009); see also McEvoy v. Spencer, 124 F.3d 92, 97 (2d Cir.
1997) (“A defendant pleading qualified immunity on a motion to
dismiss is entitled to prevail if the allegations in the
complaint fail to ‘state a claim of violation of clearly
established law.’”) (quoting Behrens v. Pelletier, 516 U.S. 299,
306 (1996)).
1.

Informational Privacy

In 1977, the Supreme Court decided two cases that referred
broadly to a constitutional privacy interest in avoiding the
disclosure of personal matters.

See Whalen v. Roe, 429 U.S.

589, 599–600 (1977); Nixon v. Administrator of General Servs.,
433 U.S. 425, 457 (1977).

More recently, in NASA v. Nelson, 131

S. Ct. 746, 751 (2011), the Court assumed without deciding that
a job-related background investigation could implicate a
government employee’s constitutional privacy rights;
nonetheless, the Court recognized that the government was
entitled to conduct “reasonable, employment-related inquiries”
of job applicants and employees.

Id. at 759.

For that reason,

the Court explained, it is permissible for the government to
seek information bearing on suitability for employment or
security clearance, including honesty, trustworthiness,
financial integrity, substance abuse, general behavior or
conduct, and legal violations.

Id. at 161.

18

Hubacz relies principally on Thorne v. City of El Segundo,
726 F.2d 459, 468-69 (9th Cir. 1983), a case in which the Ninth
Circuit applied a form of intermediate scrutiny to a police
department’s use of a mandatory polygraph examination to inquire
into an applicant’s sex life.

Id. at 469 (“[T]he City must show

that its inquiry into appellant’s sex life was justified by the
legitimate interests of the police department, that the inquiry
was narrowly tailored to meet those legitimate interests, and
that the department’s use of the information it obtained about
appellant’s sexual history was proper in light of the state’s
interests.”).

While most of the questions Protzman asked are at

least theoretically relevant to Hubacz’s qualifications as a
police officer because they bear on whether he has committed any
crimes, Protzman strayed further from relevance when he asked
Hubacz “[t]o describe intimate details of his sexual activities,
including the name and age of a particular woman.”
¶ 140(S).

FAC

That said, the particular circumstances of this case

are distinguishable from those in Thorne: the potentially
offending questions here were asked during a pre-polygraph
interview, not during the polygraph itself, see Hester v. City
of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985)
(recognizing that “[t]he city’s interest in using control
questions to improve the accuracy of the polygraph testing is an
important one”), and Hubacz’s responses were also protected from
19

public disclosure by Vt. Stat. Ann. tit 1, § 317(c)(7)3, which
helps allay his privacy concerns.

See Nelson, 131 S. Ct. at 761

(“‘[S]tatutory or regulatory duty to avoid unwarranted
disclosures’ generally allays these privacy concerns.”).
The major obstacle for Hubacz’s informational privacy claim
against Protzman, though, is showing that Protzman’s conduct
violated clearly established law.

Hubacz must show that a

reasonable officer would have understood that what he was doing
violated Hubacz’s right to informational privacy.

See Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).

Meeting that standard

“do[es] not require a case directly on point, but existing
precedent must have placed the statutory or constitutional
question beyond debate.”

Id.

Though Thorn provides support

for Hubacz’s claim, it was decided nearly two decades before
Nelson, and the legal contours of the right to informational
privacy are hardly beyond debate, particularly in the context of
questions asked in conjunction with an individual’s application
to a police force.

In the Second Circuit, the most clear

guidance on the issue is that there is no constitutional
violation unless the information released is “highly personal”

3

That provision exempts from disclosure “personal documents relating
to an individual, including information . . . maintained to hire,
evaluate, promote, or discipline any employee of a public agency,
information in any files relating to personal finances, medical or
psychological facts . . . .” Id.

20

in nature; however, that language was borrowed from the
particular law at issue in the case and was not meant to
establish the threshold for a constitutional informational
privacy claim.
(2d Cir. 1983).

Barry v. City of New York, 712 F.2d 1554, 1562
Because an officer would not have been on

reasonable notice that a question about Hubacz’s sexual conduct
would have violated Hubacz’s constitutional right to
informational privacy, this claim against Protzman is dismissed.
2.

Freedom of Speech

Hubacz also claims that Protzman violated his First
Amendment right to free speech by retaliating against him for
engaging in protected speech and by compelling him to engage in
speech during the pre-polygraph interview.

Upon inspection, the

Court finds that Hubacz has failed to state a valid claim for
relief under either theory.
“Whether public employee speech is protected from
retaliation under the First Amendment entails two inquiries: (1)
‘whether the employee spoke as a citizen on a matter of public
concern’ and, if so, (2) ‘whether the relevant government entity
had an adequate justification for treating the employee
differently from any other member of the general public.’”
Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008)
(quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

Here,

Hubacz has failed to allege facts providing a plausible basis to
21

get past the first inquiry.

Hubacz’s statements to Protzman

took place in preparation for a polygraph examination that was
required for his application to the SAPD.

As such, his speech

was not protected by the First Amendment because it involved
matters of personal interest—namely, prospective employment—
rather than public concern.

Rao v. New York City Health &

Hospitals Corp., 905 F. Supp. 1236, 1243 (S.D.N.Y. 1995) (“The
fundamental question is whether the employee is seeking to
vindicate personal interests or to bring to light a ‘matter of
political, social, or other concern to the community.’”)
(quoting Connick v. Myers, 461 U.S. 138, 146 (1983)); see also
Mishk v. Destefano, 5 F. Supp. 2d 194, 201 (S.D.N.Y. 1998)
(finding that an individual’s statements during an interview for
a promotion did not “represent speech on a matter of public
concern because their primary purpose was to increase his
likelihood of promotion”).
Hubacz also claims that he was compelled to speak, in
violation of his First Amendment rights.

“[T]he right of

freedom of thought protected by the First Amendment against
state action includes both the right to speak freely and the
right to refrain from speaking at all.”

Wooley v. Maynard, 430

U.S. 705, 714 (1977) (citing Bd. of Educ. v. Barnette, 319 U.S.
624, 633-634 (1943)).

On this ground, the Supreme Court has

struck down laws compelling public school children to salute the
22

American flag, see Barnette, 319 U.S. at 642, requiring
motorists to use license plates bearing the motto “Live Free or
Die,”

Wooley, 430 U.S. at 717, and requiring a citizen or group

of citizens to subsidize speech with which they disagree.
United States v. United Foods, Inc., 533 U.S. 405, 411 (2001).
Plaintiff here has not pleaded any facts giving rise to an
inference that he was forced to express certain views or to
subsidize speech to which he objects.
Co. v. FDA, 696 F.3d 1205, 1211 (2012).

See R.J. Reynolds Tobacco
Nor was his

participation in the pre-polygraph interview compelled by
Protzman or, for that matter, any other government official.
Hubacz made an entirely voluntary decision to apply to the SAPD,
and although taking a polygraph and undergoing a pre-polygraph
interview were mandatory components of that application process,
Hubacz had the option of refusing to answer the questions he was
asked.

FAC ¶ 145.

Most significantly, the pressure Hubacz may

have felt to complete the interview (and subsequent polygraph
had it occurred) does not mean that he was compelled by Protzman
to provide the answers he did.4
For these reasons, Hubacz’s free speech claim against
Protzman is dismissed.
3.

Freedom of Association

4

In conjunction with his First Amendment arguments, Plaintiff raises
several cases involving Fifth Amendment Due Process issues. That
claim is discussed separately below.

23

Hubacz further alleges that Protzman violated his right to
freedom of association by simply asking him whether he had ever
been a member of, donated to, or been contacted by an
organization advocating the overthrow of any government.

Hubacz

relies on two cases, Application of Stolar, 401 U.S. 23, 30
(1971) and Baird v. State Bar of Arizona, 401 U.S. 1, 5 (1971),
decided on the same day, in which a plurality of Supreme Court
justices held that the First Amendment precluded both the
District of Columbia and states from requiring an applicant for
bar admission to disclose whether he or she has been or is a
member of any organization advocating overthrow of the
government.
Those decisions, of course, did not involve the state’s
authority as an employer.

“When a citizen enters government

service, the citizen by necessity must accept certain
limitations on his or her freedom.”

Garcetti 547 U.S. at 418;

see also Waters v. Churchill, 511 U.S. 661, 671 (1994) (“[W]e
have always assumed that its premise is correct-that the
government as employer indeed has far broader powers than does
the government as sovereign.”).

Nonetheless, courts have struck

down requirements that public employees disclose all (or most)
of their associations with outside organizations.

See, e.g.,

Shelton v. Tucker, 364 U.S. 479, 490 (1960) (invalidating an
Arkansas law requiring public school teachers to disclose the
24

names and addresses of all organizations to which they had
belonged or contributed); Am. Fed’n of Gov’t Emp., R.R. Ret. Bd.
Council, AFL-CIO v. United States R.R. Ret. Bd., 743 F. Supp.
450, 452-53 (N.D. Ill. 1990) (finding that questions asking
employees to disclose their membership to all United Statesbased organizations except for labor unions and political and
religious organizations violated the First Amendment); Fraternal
Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d
105, 120 (3d Cir. 1987) (directing the district court to enjoin
use of a question on a police department’s employment
questionnaire requiring disclosure of positions or associations
held by applicants, their spouses, and minor dependent
children).

Questions targeting a specific type of organization

have received more favorable treatment,

see, e.g., Young v.

City of Louisville, No. 92-6261 at *6, 7 F.3d 237 (6th Cir. Aug.
31, 1993) (unpublished) (finding that police department’s
questions about an applicant’s affiliation with hate groups did
not violate the right to freedom of association), and some
courts, including the Second Circuit, have permitted the
government to consider how the public might perceive
associations of its police and firefighters when making
employment decisions.

See, e.g., Locurto v. Giuliani, 447 F.3d

159, 179 (2d Cir. 2006); cf. Tindle v. Caudell, 56 F.3d 966, 971
(8th Cir. 1995) (“Because police departments function as
25

paramilitary organizations charged with maintaining public
safety and order, they are given more latitude in their
decisions regarding discipline and personnel regulations than an
ordinary government employer.”).
Qualified immunity again precludes Hubacz from moving
forward with this claim.

Although it has been clearly

established that a public employee’s right to freedom of
association prevents the government from inquiring about all of
his or her associations, there is no clearly-established right
preventing a government official from asking police officers (or
applicants to become police officers) about their associations
with anti-government groups.

In this case, Protzman only

questioned Hubacz, a candidate to become a police officer, about
his involvement with organizations that advocate overthrow of
the government.

A reasonable officer in Protzman’s position

would not have reason to know that those questions violated a
clearly established constitutional right.

Hubacz’s freedom of

association claim against Protzman is therefore dismissed.
4.

Due Process

Hubacz also asserts a “due process” claim against Protzman,
but Hubacz has not been subject to any criminal proceedings,
which precludes a due process claim on the grounds of selfincrimination.

See Chavez v. Martinez, 538 U.S. 760, 772-73

(2003) (“[T]he absence of a ‘criminal case’ in which Martinez
26

was compelled to be a ‘witness’ against himself defeats his core
Fifth Amendment claim.”).

In his reply brief, Hubacz explains

that this claim asserts that “Protzman’s actions deprived [him]
of his substantive due process right to avoid public disclosure
of personal matters.”

Pl.’s Mem. Opp. Individual Defs.’ Mot. to

Dismiss at *7, ECF No. 28.

Thus framed, this claim is identical

to Hubacz’s informational privacy claim, which is dismissed for
the reasons explained above.
B.

Count XIII Fails to State a Claim Against Protzman for
Invasion of Privacy

Hubacz also raises a state tort claim for invasion of
privacy against Protzman for the questions he asked in the prepolygraph interview, for providing oral and written reports of
that interview to the SAPD, WPD, and SBPD, and for providing a
DVD of the interview to Chief Feccia.

FAC ¶¶ 550-51.

To state

a claim for invasion of privacy, a plaintiff must show “a
substantial, intentional intrusion upon the solitude or
seclusion of another, or upon his private affairs or concerns,
which would be highly offensive to a reasonable person.”

Harris

v. Carbonneau, 165 Vt. 433, 439, 685 A.2d 296, 300 (1996)
(citing the Restatement (Second) of Torts §§ 652A, 652B (1977)).
Alternatively, a plaintiff may show that the defendant gave
publicity to his or her private life if the matter publicized
“would be highly offensive to a reasonable person” and “is not

27

of legitimate concern to the public.”

Restatement (Second) of

Torts § 652D.
Hubacz has failed to state a claim against Protzman for
invasion of privacy under either theory.

Hubacz has not pleaded

any facts showing that Protzman intruded on any private space or
seclusion that Hubacz created for his person or affairs.

See

id. § 652B cmt. c. (“The defendant is subject to liability under
the rule stated in this Section only when he has intruded into a
private place, or has otherwise invaded a private seclusion that
the plaintiff has thrown about his person or affairs.”).

Nor

has he pleaded facts showing that Protzman gave publicity to any
aspects of private life.

See id. § 652D cmt. a. (explaining

that the tort requires more than mere publication to a single
person or even a small group of people).
For these reasons, Hubacz’s claims against Protzman for
invasion of privacy are also dismissed.
IV. The Claims Against the Municipal Defendants Are Dismissed in
Part
Initially, the Municipal Defendants moved to dismiss all of
the counts in which they were named; however, in their reply
memorandum, ECF No. 36 at *4-7, they withdrew their motion with
respect to Counts V, VIII, and XII after acknowledging that this
Court may entertain an on-the-record appeal of the village’s
termination decision.

See Vt. R. Civ. P. 75 (permitting

28

superior court review of decisions by state subdivisions); City
of Chicago v. International College of Surgeons, 552 U.S. 156,
164 (1997) (holding that federal courts may exercise
supplemental jurisdiction over on-the-record appeals of state
administrative decisions).

The Municipal Defendants persist in

their request to dismiss the remainder of the claims against
them.

As explained below, the Court grants the Municipal

Defendant’s revised motion to dismiss with respect to all claims
except for Count V (tortious interference) against Feccia and
Shepeluk and Count VI (defamation) against Shepeluk.
A.

Feccia and Shepeluk

Shepeluk and Feccia argue that they are entitled qualified
immunity for Counts II, III, V, VI, VII, IX, and XIII.5

As

discussed above, qualified immunity applies to claims under 18
U.S.C. § 1983 where a plaintiff fails to show that a violated a
clearly established constitutional right.
555 U.S. at 232.

See, e.g., Pearson,

Under Vermont Law, qualified immunity provides

similar protection against state claims.

See Murray v. White,

155 Vt. 621, 627, 587 A.2d 975, 978 (1991).

This Court has

previously explained that
5

For the sake of clarity, these counts include a claim against Feccia
for violation of First Amendment and due process rights (Count II);
against Shepeluk for violation of First Amendment rights (Count III);
for tortious interference with contractual relations against Shepeluk
and Feccia (Count V); for defamation against Shepeluk (Count VI); for
whistleblowing against Shepeluk and Feccia (Count VII); for violation
of the Vermont Polygraph Protection Act against Shepeluk and Feccia
(Count IX); and for invasion of privacy against Feccia (Count XIII).

29

to overcome the state law defense it is sufficient to show
that the state employee's acts violated clearly established
state law of which the employee reasonably should have
known. State law, of course, includes the common law of
negligence. Qualified immunity from tort liability will
not be made to depend upon whether the tort has been
codified.
Wilkinson v. Balsam, 885 F. Supp. 651, 664 (D. Vt. 1995)
(internal citations and quotations omitted).

For each count,

the dispute centers on whether Hubacz has pleaded facts giving
rise to the inference that Feccia and Protzman reasonably should
have known that they were acting in violation of clearly
established law.
1.

Count II Fails to State a Claim Against Feccia
for Violation of Hubacz’s Right to Informational
Privacy

In Count II, Hubacz alleges that Feccia deprived him of his
federal constitutional right to privacy by disseminating the
Report to Kelly and Shepeluk, disseminating a DVD of Hubacz’s
pre-polygraph interview to Shepeluk, and disseminating the
redacted Report to members of the media.

As explained above,

the core of Hubacz’s informational privacy claim is against
Protzman, who conducted the interview, prepared the Report, and
distributed it to Feccia, among others.

There is no basis on

which the Court might infer that Feccia’s distribution of a
Report and DVD of that interview violated a clearly established
constitutional right to informational privacy, particularly in
light of the fact that none of the facts alleged demonstrate
30

that he was asked a question that violates such a right.

For

that reason, the informational privacy claim against Feccia is
dismissed.
2.

Counts II and III Fail to State Claims Against
Feccia and Shepeluk for Retaliation in Violation
of Hubacz’s First Amendment rights

In Counts II and III, Hubacz alleges that Feccia and
Shepeluk violated his First Amendment rights by retaliating
against him when he raised concerns about other officers’
conduct at the WPD.

Hubacz shared his concerns with Feccia and

met with Shepeluk twice for a total of four hours, during which
he voiced his concerns about problems within the WPD, including
“numerous instances of sexual misconduct by WPD officers and
employees.”

FAC ¶¶ 18-20.

Feccia and Shepeluk argue that

Hubacz’s statements are not protected by the First Amendment
because he did not speak “as a citizen on a matter of public
concern.”

Garcetti, 547 U.S. at 418.

“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes . . . .”

Id. at 421.

The Second

Circuit has joined other circuits in recognizing that “under the
First Amendment, speech can be ‘pursuant to’ a public employee's
official job duties even though it is not required by, or
included in, the employee's job description, or in response to a
request by the employer.”

Weintraub v. Bd. of Educ. of City
31

Sch. Dist. of City of New York, 593 F.3d 196, 203 (2d Cir.
2010).

Particularly when the speech at issue is “part and

parcel of [an employee’s] concerns about his ability to properly
execute his duties,” it is speech made pursuant to an official
duty.

Id. (internal quotations omitted).

In Platt v. Inc.

Vill. of Southampton, 391 F. App'x 62, 63 (2d Cir. 2010), the
Platt claimed that Defendants had retaliated against him after
he reported an allegedly improper relationship between two other
officers in his department to a village trustee; however, the
district court dismissed the claim on the grounds that Platt’s
discussion with the trustee was pursuant to his official duties
as a police officer.

Id. at 63-64.

The Second Circuit

acknowledged the possibility that improper relationships in the
police department might affect public safety; however, it upheld
the district court’s dismissal of the retaliation claim.
Hubacz’s allegations are in substance identical to those
dismissed in Platt; when he met with Shepeluk, he was speaking
pursuant to his duties as a public employee rather than as a
citizen on a matter of public concern.
Hubacz also asserts that Feccia violated his right to
freedom of association; however, the Complaint does not allege
that Feccia asked Hubacz any questions about his associations
nor does it allege that Feccia subjected Hubacz to any adverse
action as a result of Hubacz’s associations.
32

For these reasons, Hubacz’s First Amendment claims against
Feccia and Shepeluk are dismissed.
3.

Count V States a Valid Claim Against Shepeluk and
Feccia for Tortious Interference With Prospective
Contractual Relations

Hubacz alleges that Shepeluk and Feccia interfered with his
prospective contractual relations with Montpelier after he
interviewed with the MPD and received a tentative offer of
employment from Chief Facos.

According to the Complaint, both

Feccia and Shepeluk contacted their counterparts in Montpelier
when they learned that Hubacz had interviewed.

Feccia contacted

Facos to remind him that Vermont police chiefs had a tacit
agreement not to steal each other’s new hires, FAC ¶ 93, and
Shepeluk contacted William Fraser, the Montpelier City Manager,
and informed him that Hubacz was a liar because he would be
breaking a three-year contract with Waterbury to go to the MPD.
Id. ¶ 87.

Contrary to Shepeluk’s alleged statement, Hubacz’s

contract with the WPD was not for a fixed term, though it did
include a provision requiring Hubacz to reimburse the WPD for
training costs if he voluntarily left within three years of
joining.

See Hubacz’s Signed Offer of Employment, ECF No. 27-1.

Both conversations occurred directly before Facos rescinded the
tentative offer.

Id. ¶ 90.

Under Vermont law, the tort of interference with
prospective contractual relations is firmly established.
33

It

requires a party to demonstrate “(1) existence of valid business
relationship or expectancy, (2) knowledge by the interferer of
the relationship or expectancy, (3) an intentional act or
interference on the part of the interferer, (4) damage to the
party whose relationship or expectancy was disrupted; and (5)
proof that the interference caused the harm sustained.”

Howard

Opera House Associates v. Urban Outfitters, Inc., 97 F. Supp. 2d
571, 575 (D. Vt. 2000) (citing Gifford v. Sun Data, Inc., 165
Vt. 611, 612, 686 A.2d 472, 473-74 (1996)).

The interference

alleged must be both intentional and improper.

Williams v.

Chittenden Trust Co., 145 Vt. 76, 80, 484 A.2d 911, 913 (1984)
(citing Restatement (Second) of Torts § 766 (1979)).
Hubacz has pleaded facts creating an inference that both
Feccia and Shepeluk tortiously interfered with his prospective
business relationship with the MPD.

According to the Complaint,

Hubacz received a tentative offer of employment, both Feccia and
Shepeluk knew of that offer, they took deliberate steps to get
Facos to rescind the offer, and apparently succeeded.

And

although this issue was not well briefed by the parties, there
is adequate reason to infer that the interference by both
defendants was improper under well-established standards.6

6

In determining whether an actor’s conduct in interfering with a
contractual relation was improper, courts consider a litany of
factors, including:
(a) the nature of the actor's conduct,

34

For

this reason, the Court denies the Municipal Defendants’ motion
to dismiss with respect to Count V.
3.

Count VI States a Valid Claim Against Shepeluk
for Defamation Per Se or Defamation

Hubacz also alleges that Shepeluk defamed him when he
called Fraser.

According to Hubacz, Shepeluk described him as a

“liar” because he was planning to leave before spending three
years with the WPD and falsely suggested that Hubacz had a
contractual obligation to remain at WPD for three years.
Under Vermont law, the “elements of a private action for
defamation are: (1) a false and defamatory statement; (2) some
negligence or greater fault in publishing the statement; (3)
publication; (4) lack of privilege in the publication; (5)
special damages, unless actionable per se; and (6) some actual
harm.”

Stone v. Banner Pub. Corp., 677 F. Supp. 242, 245 (D.

Vt. 1988) (citing Lent v. Huntoon, 143 Vt. 539, 546-47, 470 A.2d
1162, 1168 (1983)).

General, disparaging words are not

actionable per se, Restatement (Second) of Torts § 573 cmt. e.
Nonetheless, if such words cause special harm to the person
(b) the actor's motive,
(c) the interests of the other with which the actor's conduct
interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of
the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor's conduct to the
interference and
(g) the relations between the parties.
Restatement (Second) of Torts § 767.

35

defamed, such as the failure to realize a reasonable expectation
of gain, they may be the basis for an ordinary defamation suit.
As Comment b to section 575 of the Restatement explains,
Special harm may be a loss of presently existing advantage,
as a discharge from employment. It may also be a failure to
realize a reasonable expectation of gain, as the denial of
employment which, but for the currency of the slander, the
plaintiff would have received. It is not necessary that he
be legally entitled to receive the benefits that are denied
to him because of the slander. It is enough that the
slander has disappointed his reasonable expectation of
receiving a gratuity.
Id. (emphasis added).7

Here, the Complaint identifies a general

but disparaging remark by Shepeluk that interfered with Hubacz’s
reasonable expectation of employment with the MPD, a special
harm under section 575 of the Restatement.

Because those facts

are sufficient to give rise to a plausible claim for relief
under clearly established law, the Court also denies the
Municipal Defendants’ motion to dismiss with respect to Count
VI.
4.

Count VII Fails to State a Claim Against Shepeluk
and Feccia for Common Law Whistleblowing

Count VII alleges that Shepeluk and Feccia punished Hubacz
by docking him 56 hours of paid vacation time for expressing his
concerns about employee misconduct taking place at WPD.
512.

FAC ¶

According to the Complaint, despite having cleared Hubacz

of the charges of cheating at the VPA, $10 in excess insurance

7

The Vermont Supreme Court has previously relied on the comments to this
section. See Lent, 470 A.2d at 1167-68.

36

proceeds, and his taking of police uniforms, Feccia and Shepeluk
nonetheless disciplined him for sharing his criticisms of WPD
officers and employees with Protzman and Kelly.

Id. ¶¶ 245-46.

To state a claim for retaliatory discharge, a plaintiff
must allege facts showing “(1) participation in a protected
activity known to the defendant, (2) an employment action
disadvantaging [the plaintiff], and (3) a causal connection
between the protected activity and the adverse employment
action.”

Regimbald v. Gen. Elec. Co., 2:05-CV-161, 2007 WL

128963 at *3 (D. Vt. Jan. 12, 2007) (quoting Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998), abrogated on
other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101 (2002)); see also Robertson v. Mylan Laboratories, Inc., 176
Vt. 356, 376 (2004).

Hubacz has pleaded facts showing that

Feccia and Shepeluk disciplined him for expressing his concerns
about officers’ conduct at the WPD to Kelly and Protzman;
however, neither Feccia or Shepeluk would have known that
Hubacz’s activity was protected under clearly established law.
This Court has previously recognized that whistleblowing is a
protected activity, see, e.g., Regimbald, 2007 WL 128963 at *3;
however, the scope of common-law whistleblowing is ill-defined.
Reference to whistleblowing statutes from other jurisdictions
only weakens Hubacz’s argument: most whistleblowing provisions
appear to require specific dangers or violations rather than
37

simply accusations of mismanagement to qualify for protection.
See, e.g., Collette v. St. Luke's Roosevelt Hosp., 132 F. Supp.
2d 256, 268 (S.D.N.Y. 2001) (New York’s whistleblower act
protects those who report “violations of any law, rule or
regulation which ‘creates and presents a substantial and
specific danger to the public health or safety.’”) (quoting N.Y.
Labor Law § 740(2)(a)); Flores v. Dept. of Treasury, 25 F. App'x
868, 870 (Fed. Cir. 2001) (describing whistleblowing as
reporting the “violation of law, rule or regulation, gross
mismanagement, gross waste of funds, abuse of authority, or a
substantial and specific danger to public health or safety”).
Because Count VII fails to allege facts giving rise to a
claim for common law whistleblowing against Feccia and Shepeluk
under clearly established law, Count VII is dismissed.
5.

Count IX Fails to State a Claim Against Shepeluk
and Feccia for Violation of the Vermont Polygraph
Protection Act

Count IX alleges that Shepeluk and Feccia violated the
anti-retaliation provision of the VPPA, Vt. Stat. Ann. tit. 21,
§ 494d, by disciplining Officer Hubacz for filing complaints
alleging violations of the VPPA.

Although the Complaint states

that Hubacz filed a formal objection with the Vermont State
Police about the pre-polygraph interview, the Complaint contains
no facts, apart from the conclusory allegations in Count IX,
creating an inference that Hubacz suffered adverse consequences
38

for doing so.

Under Vermont law, the mere fact that Hubacz was

terminated by the Village within months of filing an objection
to the way the interview was conducted is insufficient to
establish a prima facie case for retaliation.

See, e.g.,

Robertson v. Mylan Laboratories, Inc., 2004 VT 15 ¶ 47, 176 Vt.
356, 378, 848 A.2d 310, 329 (citing Hollander v. Am. Cyanamid
Co., 895 F.2d 80, 85 (2d Cir. 1990) (proximity in time of three
months between the protected activity and the adverse action is
alone insufficient to make out a prima facie case for
retaliation)).

For this reason, the VPPA claim against Shepeluk

and Feccia is dismissed.
6.

Count XIII Fails to State a Claim Against Feccia
for Invasion of Privacy

Count XIII of the Complaint alleges that Feccia
invaded Hubacz’s privacy by distributing the Report to Kelly and
Shepeluk, distributing the DVD of the interview to Shepeluk, and
distributing the redacted Report to the media.

To state a claim

for invasion of privacy, Hubacz must plead facts showing that
Feccia intruded upon his seclusion or gave publicity to highly
private information.

See Harris, 165 Vt. at 439; Restatement

(Second) of Torts § 652D.

The Complaint does neither.

Hubacz

presents no facts suggesting that Feccia intruded upon his
seclusion.

And, as explained above, the publicity required for

invasion of privacy contemplates more than mere publication of

39

information to a third party; the term requires that the matter
be made public “by communicating it to the public at large, or
to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge.”
Restatement (Second) of Torts § 625D cmt. a.

Feccia’s

distribution of the DVD and the Report to Shepeluk and the
Report to Kelly is insufficient to meet that standard.

Although

distribution of the redacted report to the media might very well
meet the requirements for establishing publicity, the redacted
report did not contain private information that if publicized
would be highly offensive to a reasonable person.

See Redacted

Confidential Pre-employment Polygraph Examination Report, ECF
No. 27-4.

For those reasons, Hubacz’s claim against Feccia for

invasion of privacy is dismissed.
D.

Counts V, VI, VII, IX and XI Fail to State Claims
Against Waterbury

The Municipal Defendants also seek to dismiss Counts V, VI,
VII, IX, and XI against Waterbury because the Village is
entitled to municipal immunity.8
Vermont courts have long recognized the doctrine of
municipal immunity.

See Baxter v. Winooski Turnpike Co., 22 Vt.

114, 123 (1849) (explaining that the law does not provide remedy
8

Count V alleges tortious interference with contractual relations;
Count VI for defamation; Count VII for common law whistleblowing;
Count IX for violation of the Vermont Polygraph Protection Act
(“VPPA”); and Count XI for reversal of the village’s decision on the
grounds that it is arbitrary and capricious.

40

where individual sustains injury due to negligence of a town).
But municipalities are “liable only where the negligent act
arises out of a duty that is proprietary in nature as opposed to
governmental.”

Hillerby v. Town of Colchester, 167 Vt. 270,

272, 706 A.2d 446, 447 (1997).

“Despite the recognition that it

is in the distinct minority, the Vermont Supreme Court has
continued to apply this distinction, reasoning that in
performing governmental functions, municipalities act as
instrumentalities of the State and do so for the general
public.”

Gretkowski v. City of Burlington, 50 F. Supp. 2d 292,

294 (D. Vt. 1998) aff'd sub nom., 181 F.3d 82 (2d Cir. 1999)
(citing Hillerby, 167 Vt. at 272-73, 706 A.2d at 447; Hudson,
161 Vt. at 177 n. 3, 638 A.2d at 568 n.3).

Although the

distinction between governmental and proprietary functions is
sometimes difficult to apply, this Court has already cast aside
that concern in this context and concluded that “police work is
a quintessential governmental function.”

Decker v. Fish, 126 F.

Supp. 2d 342, 346 (D. Vt. 2000) (citing Clain v. City of
Burlington, 202 F.2d 532, 533 (2d Cir. 1953) (categorizing
“protection against violence and fire” as non-proprietary (i.e.,
governmental) functions of municipalities)).

The common law

claims brought by Hubacz for tortious interference with Hubacz’s
contractual relations, defamation, and whistleblowing all arise
out of the internal affairs of the WPD.
41

Since management of a

police department is quintessentially governmental, not
proprietary, municipal immunity clearly precludes action against
Waterbury on those claims.9
The applicability of municipal immunity is more complicated
with respect to Hubacz’s claim that Waterbury violated the VPPA
(Count IX).

The fundamental issue is whether Vermont’s common

law municipal liability is abrogated by a statutory right of
action.10

The VPPA regulates polygraph examinations administered

by employers, including “any individual, organization, or
governmental body . . . which has one or more individuals
performing services for it within this state” and creates
penalties for violators of those regulations.
tit. 21, § 494a, 494e.

Vt. Stat. Ann.

Nonetheless, the VPPA is silent with

respect to its impact on common law municipal immunity.

Where,

as here, a statute does not clearly abrogate a well-established
immunity, this Court is loathe to make such an inference.

See

18 Eugene McQuillin, The Law of Municipal Corporations § 53.76
(3d ed. 1993) (enactments imposing municipal liability in
derogation of the common law are strictly construed); cf. Owen
v. City of Independence, Mo., 445 U.S. 622, 667 (1980)

9

Hubacz has not alleged, nor is there any indication that Waterbury
has liability insurance that would waive its immunity under Vt. Stat.
Ann. tit. 29, § 1403.
10
The issue of whether statutory rights of action abrogate common law
municipal immunity was not addressed by either of the parties, and to
the Court’s knowledge, there is no Vermont Supreme Court case
discussing the matter.

42

(“[I]mmunities well grounded in history and reason were not
abrogated by covert inclusion in the general language of §
1983.”) (internal quotations omitted).
Finally, Count XI alleges that Waterbury’s decision to
terminate Hubacz was “arbitrary, capricious, unconstitutional
and contrary to law and should be reversed.”

FAC ¶ 533.

In the

absence of any language clarifying the nature of these claims,
the Court interprets Count XI as a request to reverse
Waterbury’s decision to terminate Hubacz on the legal grounds
stated elsewhere in the Complaint.
For these reasons, the claims contained in Counts V, VI,
VII, IX, and XI against Waterbury are dismissed.
CONCLUSION
The Court grants Kelly and Protzman’s motion to dismiss in
full.

The Court also grants the Municipal Defendants’ motion to

dismiss except with respect to Count V (tortious interference)
against Feccia and Shepeluk and Count VI (defamation) against
Shepeluk.

Because the Municipal Defendants withdrew their

motion to dismiss with respect to Counts VIII and X against
Waterbury and Count XII against Feccia, those claims also
remain.

43

Dated at Burlington, in the District of Vermont, this 4th
day of April, 2013.

/s/William K. Sessions III
William K. Sessions III
U.S. District Court Judge

44